Nixon v. Tongren

• Decision Date: 17 November 1920
• Citation: 193 P. 731,33 Idaho 287
• Parties: W. E. NIXON, Administrator With the Will Annexed of the Estate of JOHN TONGREN, Deceased, Appellant, v. EMMA TONGREN, Respondent
• Court: Idaho Supreme Court

193 P. 731

33 Idaho 287

W. E. NIXON, Administrator With the Will Annexed of the Estate of JOHN TONGREN, Deceased, Appellant, v. EMMA TONGREN, Respondent

Supreme Court of Idaho

November 17, 1920

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.

Action for divorce. Appeal from an order made after judgment declaring the judgment and decree null and void. Reversed.

Order reversed. Costs awarded to appellant.

H. C Hazel, for Appellant.

"In a collateral attack on the judgment, the want of jurisdiction to render the judgment must appear upon the face of the judgment-roll, otherwise the presumption is in favor of the validity of the judgment." (O'Neill v Potvin, 13 Idaho 721, 93 P. 20.)

The court had jurisdiction of both the person and subject matter and therefore any relief sought from a judgment should be applied for within the statutory time. (Vane v Jones, 13 Idaho 21, 88 P. 1058.)

"Want of jurisdiction in the court passing it is the only cause which renders a decree of divorce absolutely void; fraud does not, nor does irregularity." (5 Am. & Eng. Ency. Law, 843; Larimer v. Knoyle, 43 Kan. 338, 23 P. 487.)

H. J. Swanson and H. B. Thompson, for Respondent.

Where an affidavit upon which an order for service of summons by publication is procured is false, the judgment is void. ( Strode v. Strode, 6 Idaho 67, 96 Am. St. 249, 52 P. 161; Lohr v. Curley, 27 Idaho 739, 152 P. 185.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

On the twenty-sixth day of October, 1915, a judgment was entered in the district court for Twin Falls county in an action wherein John Tongren, now deceased, was plaintiff, and the respondent, Emma Tongren, defendant, dissolving the bonds of matrimony between the parties on the ground of desertion. From the judgment-roll it appears that the service of summons purports to have been by publication. On the twenty-third day of March, 1918, respondent filed a motion in that action wherein she sought to have appellant Nixon as administrator with the will annexed of the estate of John Tongren, deceased, substituted as party plaintiff, and asked for an order declaring the judgment decreeing divorce void, for the reason that she had not been served in the manner prescribed by statute, and that the court had never acquired jurisdiction, and further asking that the default be set aside and that she be permitted to file her answer. On the twenty-seventh day of June, 1918, and after a hearing upon the motion, the court made an order substituting appellant as plaintiff in the action, declaring the judgment decreeing the divorce void, setting aside the default and permitting respondent to file her answer. This appeal is from the order.

The only assignment discussed is that the court erred in sustaining the motion for an order declaring void the judgment decreeing the divorce. It is apparent that the motion which was made by respondent in the original action was not made until two years and five months after the judgment had been entered. C. S., sec. 6726, which defines the power of the court to permit amendments, relieve from defaults, and vacate default judgments, contains among others the following provision:

"When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant, or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action."

Under this provision the court was without jurisdiction to entertain a motion to vacate the judgment for the obvious reason that the motion was not made within the time limited by this statute. (People v. Temple, 103 Cal. 447, 37 P. 414; People v. Davis, 143 Cal. 673, 77 P. 651.) In the Temple case, the court not only announced the rule applicable to the case at bar, but pointed to the way out of the difficulty in the following language:

"When a judgment is not void upon its face, the court has no power to set it aside on motion, unless the motion is...